In this insurance coverage dispute, Melland Company, the successor by merger to Melland Real Estate Inc., held an insurance policy with Secura Insurance Companies. The replacement coverage policy covered the insured premises, a set of commercial real estate buildings in Jamestown, North Dakota, owned by the Melland family since around 1957. A blizzard named “Winter Storm Ulmer” in March 2019 caused a covered cause of loss on the property, resulting in a collapse due to the weight of snow and wind.
Secura acknowledged the covered cause of loss and initially tendered $42,377.77 to Melland Real Estate, Inc. before its merger into Melland Company. Following the 2019 storm, Ryan Heyer, an engineer from Heyer Engineering, who held the designation of “Engineer of Record” with the “Authority Having Jurisdiction” as per the 2015 International Building Code adopted by the City of Jamestown, issued a field report. In essence, the report concluded that repairing the damage caused by the storm was deemed “uneconomic and unfeasible.”Subsequently, another collapse occurred in the same area in January 2020. Thomas Schanandore, of Structural Engineers was engaged and subsequently issued an engineering report, consistent with the Heyer Report. The Jamestown municipal government held a Condemnation Hearing, leading to an order condemning and mandating the demolition of the entire east end of the insured premises. Melland Company notified Secura of this decision and its plan to demolish the structure.
In June 2020, Melland Company directed the demolition of the entire insured property, incurring costs of $87,190. Secura acknowledged the covered cause of loss as of March 15, 2019, and issued a payment of $42,377.77 to Melland Company, stating it was without prejudice to the company’s claims. However, a dispute arose between Secura and Melland regarding the application of the insurance policy, statutes, and common law concerning the amount of loss sustained by Melland.
The parties specifically disagreed on the application of N.D.C.C. § 26.1-39-05 to the insurance contract governing their relationship. This statute pertained to aspects of insurance law in North Dakota, potentially concerning the determination or calculation of losses within the context of an insurance policy.
Throughout the legal proceedings, the disagreement persisted, with each party holding differing interpretations of the policy, statutes, and common law in relation to the extent of the loss suffered by Melland Company.
Structural Engineering Expert Witness
Ryan Heyer has been in the industry since 2005 and has extensive design-build and construction site experience and specializes in the structural design of steel and concrete buildings. Heyer earned his Bachelor of Science degree in Civil Engineering from North Dakota State University in 2005 and upon joining Heyer engineering after graduation, immediately was intrigued by the industrial side of structural engineering.
Discussion by the Court
Defendant Secura Insurance Companies (“Secura”) moved in limine for several evidentiary rulings before trial while Plaintiff Melland Company (“Melland”) generally opposed the motions
Secura filed a motion in limine, aiming to restrict expert witnesses Ryan Heyer and Thomas Schanandore, representing Melland, from presenting opinions that were not included in their disclosed reports. Under Federal Rule of Civil Procedure 26(a)(2)(B), experts must disclose all opinions they intend to express, along with the basis and reasons for these opinions. Any expert opinions presented during trial must adhere to this disclosure requirement.
The Court granted Secura’s motion partially in favor of both parties, emphasizing adherence to Rule 26(a)(2)(B) for all expert witnesses involved. However, the court denied Secura’s motion to limit Heyer and Schanandore’s testimony prospectively, considering it premature at that stage of the proceedings.
Secura submitted a second motion in limine, requesting the Court to restrict Ryan Heyer’s testimony to specific relevant issues within his expertise. Secura’s argument was centered on limiting Heyer’s testimony to his observations of a damaged awning and a buckled girder. However, Heyer, a structural engineer who provided an expert report, had advocated for extensive reinforcement to bring the building up to code in this case. He was deemed qualified to offer professional opinions regarding the damage to the building, consistent with his expert report.
The Court declined to prospectively limit Heyer’s testimony at that stage. It found that many of Secura’s concerns regarding Heyer’s potential testimony related more to the weight of his testimony rather than its admissibility. Consequently, the Court denied Secura’s second motion in limine.
Secura filed a third motion in limine seeking to exclude evidence regarding the second snow event, arguing its irrelevance to Melland’s claim. Secura contended that Melland’s assertion pointed to the first snow event as the cause of the constructive total loss, rendering evidence of the second snow event unnecessary and potentially confusing for the jury.
However, the Court noted that while Melland primarily alleged the first snow event led to the constructive total loss, it also presented an alternative claim implicating the second snow event as a cause. As a result, evidence of the second snow event was deemed relevant to Melland’s alternative theory of the case. The Court further concluded that presenting evidence about the second snow event was unlikely to confuse or mislead the jury.
Secura presented a fourth motion in limine aiming to prevent any mentions of the 2018 International Building Code (IBC) and the 2018 International Existing Building Code (IEBC) in the proceedings. Their argument rested on the premise that North Dakota adopted the 2018 IEBC on January 1, 2020, making the application of these codes inappropriate to assess repairs for the damage incurred in March 2019 from the first snow event.
Acknowledging that Secura’s stance was accurate concerning the inapplicability of the 2018 IEBC to the March 2019 damage (as the 2015 IEBC was relevant at that time), the Court highlighted Melland’s alternative assertion. Melland proposed that the second snow event, occurring in early January 2020, caused the constructive total loss. Consequently, the Court deemed it premature to entirely exclude references to the 2018 IBC and IEBC.
Given Melland’s alternative claim regarding the second snow event, the Court denied Secura’s fourth motion in limine. The denial was based on the understanding that precluding all references to the 2018 IBC and IEBC at that juncture would be premature, considering the potential relevance of these codes to the second snow event alleged by Melland.
Secura submitted a fifth motion in limine to restrict Melland’s lay witnesses from providing expert testimony. Federal Rule of Evidence 701 delineates that lay witness opinions should not derive from specialized knowledge within the purview of Rule 702, which covers expert testimony.
The Court granted Secura’s motion to prevent Melland’s lay witnesses from presenting expert opinion testimony, aligning with Rule 701’s limitations. However, the Court clarified that this ruling didn’t preclude Melland’s witnesses from offering opinions that conformed to the standards outlined in Rule 701. Essentially, Melland’s lay witnesses could still provide testimony in an opinion format as long as it complied with the criteria set forth in Rule 701, which governs lay witness opinion testimony.
Secura filed a sixth motion in limine aiming to exclude any documents or references regarding the City of Jamestown’s order condemning and demolishing the building. Secura argued that this evidence violated Federal Rules of Evidence 402 and 403. Melland contended that the condemnation order was pertinent to determining if the building lost its specific identity and character.
The Court evaluated the relevance of the evidence in the context of an insurance coverage dispute, focusing on whether a snow event caused the building’s constructive total loss. The Court determined that the City of Jamestown’s decision to condemn the building lacked relevance to the central issue that the jury needed to decide. The condemnation order did not impact whether the snow event(s) resulted in a constructive total loss.
Moreover, the Court highlighted a high risk of confusion and potential for misleading the jury if the evidence concerning the City’s condemnation and demolition directive were to be presented. The decision by the City was viewed as independent of the question regarding the snow event(s) causing a constructive total loss.
As a result, the Court granted Secura’s motion, excluding any mention or documentation related to the City of Jamestown’s condemnation and demolition directives from the proceedings. The Court’s decision was based on the determination that the evidence held no direct bearing on the core issue of whether the snow event(s) led to a constructive total loss, and its inclusion risked confusion and misleading the jury.
Secura filed a seventh motion in limine seeking to prevent arguments suggesting that the building constituted a constructive total loss based on the claim that repair costs exceeded the “value” of the building. Secura contended that the comparison between repair costs and the building’s value was not relevant to determining whether the building lost its specific character and identity. Melland argued that the cost of repair should be considered by the jury, asserting that the North Dakota Supreme Court hadn’t explicitly ruled out a cost of repair analysis.
The Court acknowledged the validity of both parties’ positions. It recognized that the cost of repair could bear relevance to the central issue of the case, and the North Dakota Supreme Court hadn’t explicitly dismissed such an analysis. However, the Court also acknowledged Secura’s concern about the criteria against which the cost of repair should be measured.
It noted that in jurisdictions utilizing the cost of repair test, the comparison is made between the cost of repair and the building’s value as stated in the applicable policy. Consequently, the Court ruled that Melland could present evidence regarding the cost of repair, partially denying Secura’s motion. However, it clarified that the cost of repairs must be juxtaposed against the value of the building as specifically stated in the policy. In this regard, the Court granted Secura’s motion partially, ensuring that the comparison between repair costs and the building’s value adhered to the policy’s stated value.
Secura filed an eighth motion in limine, aiming to prevent Melland from arguing that the entire building needed to be brought up to building code, despite the undisputed fact that the west portion remained undamaged. Secura’s argument was grounded in the distinction between the undamaged west portion and the damaged east portion of the building.
However, the Court noted that the insurance policy covered both the west and east portions of the building as a single unit. Consequently, the Court ruled against limiting Melland’s expert witnesses from providing their opinions regarding this matter. It deemed that Secura’s concerns primarily pertained to the weight of the evidence rather than its admissibility.
The Court denied Secura’s motion, emphasizing that while Melland’s experts could testify, they needed to establish a sufficient foundation for all evidentiary matters related to the argument about the building’s code compliance.
Secura submitted a ninth motion in limine, seeking to prevent Melland from presenting any evidence regarding the cost of repair due to the absence of disclosed opinions on this matter. The argument centered on the fact that neither of Melland’s experts had explicitly provided a specific dollar amount for the cost of repair in their reports.
However, the Court determined that although neither expert had offered a precise dollar amount for the cost of repair, both were permitted to testify in accordance with the content outlined in their expert reports. Consequently, the Court denied Secura’s ninth motion in limine, allowing Melland’s experts to present testimony consistent with the details articulated within their respective expert reports.
Secura filed a tenth motion in limine, aiming to exclude any evidence or testimony regarding the premiums paid by Melland or the duration of Melland’s insurance coverage with Secura. The argument rested on the premise that such details were irrelevant to determining whether the building experienced a constructive total loss.
The Court agreed with Secura’s position, noting that the length of time Melland was insured by Secura and the amount of insurance premiums paid did not influence the likelihood of a constructive total loss concerning the building. As a result, the Court granted Secura’s tenth motion in limine, precluding any presentation of evidence or testimony related to the premiums paid or the duration of insurance coverage with Secura during the proceedings.
Secura filed an eleventh motion in limine, aiming to prevent any mention of Secura’s size, financial status, solvency, or capability to pay a verdict or fulfill a judgment. The argument highlighted the irrelevance of such references to the case. Additionally, even if considered relevant, the minimal probative value was deemed significantly outweighed by the potential for unfair prejudice.
The Court granted Secura’s eleventh motion in limine, thereby precluding any allusions or discussions related to Secura’s size, financial condition, solvency, or ability to satisfy a judgment during the trial proceedings.
Secura filed a twelfth motion in limine, attempting to exclude factual details surrounding the snow events in question. Melland countered, asserting that the specifics regarding the type and quantity of snow were directly tied to the building’s transformation into a constructive total loss.
The Court, considering the arguments presented, opted not to preclude all evidence pertaining to the snow events. It reasoned that the nature and volume of snow might provide essential context and could potentially hold relevance to the case. Consequently, the Court denied Secura’s twelfth motion in limine, allowing for the inclusion of evidence regarding the details of the snow events during the trial proceedings.
Secura filed a last motion in limine, aiming to prevent Melland from calling any undisclosed fact witnesses. The Court opted not to issue a comprehensive order regarding undisclosed witnesses at that juncture. Instead, it stated that objections to undisclosed witnesses would be evaluated on a case-by-case basis in accordance with the Federal Rules of Evidence and pertinent case law.
Consequently, the Court denied Secura’s thirteenth motion in limine, indicating that objections to undisclosed witnesses would be addressed individually as per the applicable legal framework during the trial proceedings.
Held
- The Court granted in part and denied in part Secura’s first motion in limine to limit the opinions of Ryan Heyer and Thomas Schanandore to the opinions disclosed in their reports.
- The Court denied Secura’s second motion in limine to limit Ryan Heyer’s testimony and report to relevant issues on which he is qualified to opine.
- The Court denied Secura’s third motion in limine to preclude evidence about the second snow event because Plaintiff’s claim is that the first snow event caused a total loss.
- The Court denied Secura’s fourth motion in limine to preclude reference to the 2018 IBC and 2018 IEBC. In turn, precluding the report and testimony of Mr. Schanandore to the extent they opine on application of the 2018 IBC and IEBC.
- The Court granted Secura’s fifth motion in limine to limit the testimony of any witness called by Plaintiff at trial to their firsthand knowledge of the facts.
- The Court granted Secura’s sixth motion in limine to preclude any documents or reference to the City of Jamestown ordering the East Building to be demolished and any evidence or testimony that the Building was demolished.
- The Court granted in part and denied in part Secura’s seventh motion in limine to preclude arguments that the Building is a constructive total loss based on claims the cost of repair exceeds the value of the Building.
- The Court denied Secura’s eighth motion in limine to limit any argument to the cost to repair the damaged section of the East Building.
- The Court denied Secura’s ninth motion in limine to preclude any repair estimates or argument that the cost to repair the damaged section of the East Building exceeds the stated value of the Building.
- The Court granted Secura’s tenth motion in limine to preclude references or argument about the insurance premiums that Plaintiff paid or the number of years that Plaintiff has been insured with SECURA.
- The Court granted Secura’s eleventh motion in limine to preclude reference to SECURA’s size, financial condition, solvency or ability to pay a verdict or satisfy a judgment.
- The Court denied Secura’s twelfth motion in limine to preclude factual details about the snow events.
- The Court denied Secura’s last motion in limine to preclude any fact witnesses on Plaintiff’s Witness List that has never been disclosed.
Key Takeaways:
This order makes several key rulings regarding expert witness testimony. First, it grants Secura’s motion requiring that all expert opinions offered at trial must comply with the disclosure requirements of Rule 26(a)(2)(B). Any opinions not properly disclosed in advance cannot be offered. Second, it denies Secura’s motion to prospectively limit the testimony of Melland’s experts, Ryan Heyer and Thomas Schanandore. The Court rules that Secura’s concerns regarding the experts’ potential testimony generally relate to the weight of their testimony rather than admissibility. Third, the order permits Melland’s experts to testify regarding the cost of repairs to the building, but specifies that any such testimony must compare the cost of repairs to the value of the building as stated in the insurance policy that is at issue. Fourth, it denies Secura’s motion to bar testimony about repairs required to bring the entire building up to code. However, sufficient foundation must still be established regarding the evidence presented on this issue. Finally, the order permits Melland’s experts to testify consistent with their previously disclosed expert reports, despite the fact that they did not provide specific dollar amounts regarding cost of repair.
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